INTERLOCUTORY JUDGMENT OF PARTITION BY SALE
This is a fascinating example of an Interlocutory Judgement of Partition by Sale which has been provided through the kindness of David B. Nemer, an attorney who is an expert in partition actions and who practices in San Francisco.  This is the Interlocutory Judgment that was used in the "Lonely San Francisco Victorian" example which you can read here. 

In this case, there were a great number of fractional owners of the property.  Fractional ownership was the result of the property passing through several estates without any of them being probated or administered as a trust asset.   Thus, the laws of intestate succession determined the ownership in each instance.  The situation was further complicated because a number of the individuals who were entitled to intestate interests by statute, also died without probates so that their interests in turn were also distributed by intestate succession.  This fractionalization is evident  from the manner in which the defendants were designated in the caption.  Note the recitation of the amounts of the fractional interests in the judgment. Their interests are properly characterized as tenancies in common. Note also that  calculating these fractional interests presented a considerable challenge to Mr. Nemer who had to construct a family tree, determine the sequence of deaths within these individuals, and apply the laws of intestate succession in each instance.  Finally, note that all but a few of the tenants in common defaulted after being served with the partition complaint.

An interesting aspect of this case was that the title company was reluctant to issue title insurance on the sale because they could not be sure first that the named distributees were who they purported to be until social security numbers were provided, and second, whether any of the distributees had judgment liens recorded against them in any of the California counties.  To solve these problems, Mr. Pecherer negotiated an arrangement with the title company whereby the title company retained all of the proceeds of the sale in an interest bearing account until the identities were confirmed and the records searched for liens.  Much of this was accomplished by Mr. Pecherer.  That process took about six months.  Once it was completed, an order of distribution was obtained and the funds distributed in conformity with the percentages set out in the Interlocutory Judgment.  Here again, the benefit of close coordination with a title company and a knowledgeable title officer is illustrated.

All of the basic components of an Interlocutory Judgement of Partition by Sale are present, including the designation of the Referee, the instructions to the Referee regarding the property and the sale.

DAVID B. NEMER, JR. (No. 66975)
44 Montgomery Street, Ste. 2500
San Francisco, California 94104

Telephone No. (415) 391-1070
Facsimile No. (415) 393-8087

Attorney for Plaintiff DOROTHY MARKS JOHNSON



SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION











































This action for partition came on regularly for trial on October 7, 2002, in the above-entitled court; DAVID B. NEMER, JR., Attorney at Law, appearing on behalf of plaintiff DOROTHY MARKS JOHNSON; DOMINIC R. LIBONATI, and MALLETTE and LIBONATI, Attorneys at Law, appearing on behalf of the successors of Defendant CHARLES BELFREY; THELMA ELLIOTT, PAUL WILLIE, DOUGLAS WILLIE, JAMES WILLIE, GILBERT WILLIE, BETTY ANN WILLIE JOHNSON, BOBBY WILLIE, EUGENE BROCKETT, WARREN LEE BROCKETT, GLORIA BROCKETT, SHIRLEY BROCKETT, CHARLES BROCKETT, JOANN PORTER WILLIAMS, LARRY PORTER, KEITH PORTER, MILDRED PORTER, KARL PORTER, GWEN PORTER, LUCIOS PORTER, the testate and intestate successors of HELEN BUTLER, deceased, the testate and intestate successors of LEONARD BELFREY, deceased, the testate and intestate successors of PAULINE WILLIE, deceased, the testate and intestate successors of ESSIE LEE BROCKETT, deceased, the testate and intestate successors of LUCILLE PORTER, deceased, all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint, all having been properly served with the summons and complaint, having failed to appear and to answer the complaint within the time prescribed by law, and the defaults of said defendants having been duly-entered; the court having heard and considered the evidence, both oral and documentary, and the argument of counsel, the matter having been submitted for decision, a statement of decision having not been requested, and good cause appearing therefor, the Court enters its interlocutory judgment of partition, as follows,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that:

1. The subject of this action is the real property (hereinafter referred to as "Real Property") located in the City and County of San Francisco, State of California, commonly known as 2905 Bush Street, San Francisco, California, and more particularly described as follows:

















2. The owners of the fee simple interest in the Real Property are, as follows:

Name Percentage of Ownership:

DOROTHY MARKS JOHNSON 16.3265

THELMA ELLIOTT 16.3265

ADELA BELFREY 5.4422

JOSEPH BELFREY 1.3606

CHARLES BELFREY, JR. 1.3606

BENJAMIN BELFREY 1.3606

EARL BELFREY 1.3606

TINA BELFREY 1.3605

OLIVIA BELL 1.3605

NORMA GALVEZ 1.3605

MERCEDES ORTEZ 0.4535

SALENA ORTEZ 0.4535

FRANK ORTEZ, JR. 0.4535

PAUL WILLIE 2.7211

DOUGLAS WILLIE 2.7211

JAMES WILLIE 2.7211

GILBERT WILLIE 2.7211

BETTY ANN WILLIE JOHNSON 2.7211

BOBBY WILLIE 2.7211

EUGENE BROCKETT 3.2653

WARREN LEE BROCKETT 3.2653

GLORIA BROCKETT DONALDSON 3.2653

SHIRLEY BROCKETT FOSTER 3.2653

CHARLES BROCKETT 3.2653

KARL PORTER 5.4422

JOANN PORTER WILLIAMS 2.1769

LARRY PORTER 2.1769

KEITH PORTER 2.1769

MILDRED PORTER HARRIS 2.1769

GWEN PORTER 1.0884

LUCIOS PORTER 1.0883

AIL BREWSTER BEREOLA 0.2268

MICHELE BREWSTER 0.2268

JACQUELINE BREWSTER 0.2268

MICHAEL BREWSTER 0.2268

PAULETTE BREWSTER 0.2268

TAMI THOMAS 0.2267

ALBERT BREWSTER 0.2267

DEMETRIOUS BREWSTER 0.2267

BELINDA BREWSTER 0.2267

Total 100.0000

3. The Real Property is subject to the following encumbrances: None.

4. The interest in the Real Property of CHARLES BELFREY, JR., as set forth above, is subject the lien of a judgment for child, family, or spousal support, in the matter of Russell v. Belfrey, San Francisco Superior Court No. 721127, recorded September­ber 13, 1985, as Document No. D692347, at Reel D919, Page 1046. Said lien shall be paid solely from the interest of CHARLES BELFREY, JR., in the Real Property.

5. Sale of the Real Property and division of the net proceeds of sale is more equitable than division of the Real Property in kind.

6. The Real Property shall be sold and the net proceeds of sale applied in accordance with the provisions of Paragraph 11 below.

7. MICHAEL S. PECHERER, Attorney at Law, 2005 Mt. Diablo Blvd, Walnut Creek, California 94596, is appointed referee with authority to sell the Real Property at private sale, to the highest and best net bidder, subject to confirmation of the Court, which manner of sale is hereby determined to be most beneficial to the parties. Notice of sale shall be given in the manner required for notice of sale specified in California Code of Civil Procedure Sec. 873.640 and shall be given to the persons specified in California Code of Civil Procedure Sec. 873.640. In all other respects the sale shall be conducted as provided in California Code of Civil Procedure Sec. 873.600-873.690. No bond shall be required of the referee until such time as the sale of the Real Property is confirmed by the Court.

8. The referee shall have the authority to enter upon the Real Property; to inspect the Real Property; to evict any person or persons residing in the Real Property; to borrow money to repair the Real Property for sale and to repay any money borrowed, together with interest at five (5%) percent simple interest per annum, from the net proceeds of sale of the Real Property; to engage the services of inspectors and experts and to pay for the same from net proceeds of sale of the Real Property; and to enter into an exclusive listing agreement with a duly licensed realtor in the State of California for the sale of the Real Property, provided that the realtor's commission does not exceed six (6%) percent of the sale price and the term of the exclusive listing agreement does not exceed ninety (90) days.

9. The Real Property shall be sold on an "as is" basis, without any warranty, express or implied, except as to title. The sale is subject to current taxes, covenants, conditions, restrictions, reservations, rights, rights of way, existing tenancies, and easements of record. Any encumbrances of record shall be satisfied out of the proceeds of sale. The Real Property shall be sold for cash. Real property taxes, rents, operating and maintenance expenses, and premiums on insurance acceptable to the purchaser shall be prorated as of the date of recording the conveyance. Examination of title, recording of the conveyance, notary fees, escrow fees, tax service fees, any fees for any reports and/or inspections, and any title insurance policy shall be at the expense of the purchaser or purchasers. Escrow shall close within thirty (30) days after the date of confirmation of sale by the Court.

10. The referee, after selling the Real Property shall report to the Court on the sale proceedings, and, upon confirmation of the sale by the Court and payment of the purchase price, is authorized to execute and deliver a deed to the Real Property to the purchaser.

11. The proceeds of the sale of the Real Property shall be applied, as follows:

A. To pay the fees and expenses of the referee and of his attorney, if any;

B. To pay the expenses of sale;

C. To pay the costs of partition or to secure any cost of partition later allowed;

D. To reimburse plaintiff DOROTHY MARKS JOHNSON for the cost of the litigation guarantee in the sum of                   $500.00;

E. To pay the attorney's fees and costs of plaintiff DOROTHY MARKS JOHNSON in an amount to be determined                        by the Court upon motion;

F. To pay the attorney's fees and costs of the successors of defendant CHARLES BELFREY in an amount to be                       determined by the Court upon motion; and

G. To distribute the residue among the owners of the Real Property in proportion to their percentage own­ership                           interests in the Real Property as set forth in Paragraph 2 above and giving effect to Paragraph 4 above.

12. The Court shall retain jurisdiction of the above-captioned matter to confirm the sale of the Real Property and to review the report of the referee, and to order equitable adjust­ments that the Court considers just and appropriate.

Dated:

______________________________
JUDGE OF THE SUPERIOR COURT



















Case No. 319436

INTERLOCUTORY JUDGMENT OF
PARTITION

DOROTHY MARKS JOHNSON,
Plaintiff,

v.

THELMA ELLIOTT; CHARLES BELFREY;
PAUL WILLIE; DOUGLAS WILLIE; JAMES
WILLIE; GILBERT WILLIE; BETTY ANN
WILLIE JOHNSON; BOBBY WILLIE;
EUGENE BROCKETT; WARREN LEE
BROCKETT; GLORIA BROCKETT; SHIRLEY
BROCKETT; CHARLES BROCKETT; JOANN
PORTER WILLIAMS; LARRY PORTER;
KEITH PORTER; MILDRED PORTER; KARL
PORTER; GWEN PORTER; LUCIOS
PORTER; the testate and intestate
successors of HELEN BUTLER,
deceased, and all persons claiming by, through,
or under such decedent; the testate and intestate
successors of LEONARD BELFREY, deceased,
and all persons claiming by, through, or under
such decedent; the testate and intestate successors of PAULINE WILLIE, deceased, and all persons claiming by, through, or under such decedent; the testate and intestate successors of
ESSIE LEE BROCKETT, deceased, and all persons claiming by, through, or under such decedent; the testate and intestate successors
of LUCILLE PORTER, deceased, and all
persons claiming by, through, or under
such decedent; all persons unknown, claiming
any legal or equitable right, title, estate, lien, or
interest in the property described in the complaint;
and DOES 1 to 100, inclusive

Defendants.
Beginning at a point on the Southerly line of Bush Street, distant thereon 43 feet Westerly from the Westerly line of Lyon Street; running thence Westerly along said Southerly line of Bush Street 25 feet, 9 inches; thence at a right angle Southerly 107 feet, 6 inches; thence at a right angle Easterly 25 feet, 9 inches; thence at a right angle Northerly 107 feet, 6 inches to the Southerly line of Bush Street and the point of begin­ning.

Being a portion of Western Addition Block No. 619.

Commonly known as 2905 Bush Street, San Francisco, California.

Assessor's Parcel No. 8-1055-23.